United States Foreign Intelligence Surveillance Court of Review
| United States Foreign Intelligence Surveillance Court of Review | |
|---|---|
| (F.I.S.C.R.) | |
 | |
| Location | Washington, D.C. |
| Appeals to | Supreme Court of the United States |
| Appeals from | |
| Established | October 25, 1978 |
| Authority | Article III court |
| Created by | Foreign Intelligence Surveillance Act 50 U.S.C. § 1803 |
| Composition method | Chief Justice appointment |
| Judges | 3 |
| Judge term length | 7 years |
| Presiding Judge | Stephen A. Higginson |
| www | |
The United States Foreign Intelligence Surveillance Court of Review (FISCR) is a U.S. federal court whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). The FISCR was established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short) and consists of a panel of three judges. Like the FISC, the FISCR is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae if they are made aware of the proceedings. Papers are filed and proceedings are held in secret. Records of the proceedings are kept classified, though copies of the proceedings with sensitive information redacted are very occasionally made public. The government may appeal decisions of the FISCR to the Supreme Court of the United States, which hears appeals on a discretionary basis.
There is no provision for review or appeal of a grant of a warrant application, only of a denial. That is because in both the FISC and the FISCR, the government – the party who seeks a warrant to conduct surveillance – is the only party before the court, and it is unusual for anyone else to become aware of the warrant application in the first place.
The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven-year terms. Their terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either the FISCR or the FISC.
Notable cases
[edit]In re Sealed Case
[edit]The FISCR was called into session for the first time in 2002 in a case referred to as In re: Sealed Case No. 02-001. The FISC had granted a FISA warrant to the Federal Bureau of Investigation (FBI) but had placed restrictions on its use; specifically, the FBI was denied the ability to use evidence gathered under the warrant in criminal cases. FISCR allowed a coalition of civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, to file amicus briefs opposing the FBI's new surveillance programs. The FISCR held that the restrictions that the FISC had placed on the warrant violated both FISA and the USA PATRIOT Act and that there was no constitutional requirement for those restrictions.
In re Directives
[edit]
In August 2008, the FISCR affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion, In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, released on January 15, 2009.[1][2][3] In re Directives was only the second such public ruling since FISA's enactment.[4]
In re Certification of Questions of Law
[edit]In May 2018, the FISCR affirmed an en banc order holding that three public interest groups had "standing to seek disclosure of the classified portions of the opinions at issue." The three groups were the American Civil Liberties Union Foundation, the American Civil Liberties Union of the Nation's Capital, and the Media Freedom and Information Access Clinic at Yale University. The government had argued that none of the groups had a legal right to compel disclosure of FISC opinions. The FISCR disagreed, holding: "The flaw in the government's position is that it attacks the merits of the movants' claim rather than whether the claim is judicially cognizable. In other words, the government confuses the question of whether the movants have a First Amendment right of access to FISC opinions with the question of whether they have a right merely to assert that claim. Courts have repeatedly pointed out that there is a distinction between whether the plaintiff has shown injury for purposes of standing and whether the plaintiff can succeed on the merits."[5]
Composition
[edit]Note that the start dates of service for some judges conflict among sources.[6][7][8][9][10][11][12]
Current membership
[edit]| Name | Court | Start | End | Presiding Start | Presiding End | FISCR Appointer (Chief Justice) |
Original Appointer (President) |
|---|---|---|---|---|---|---|---|
| Stephen Higginson | 5th Cir. | February 25, 2021 | May 18, 2027 | August 16, 2023 | present | John Roberts | Barack Obama |
| Timothy Tymkovich | 10th Cir. | November 1, 2023 | May 18, 2030 | – | – | John Roberts | George W. Bush |
| Lisa Godbey Wood | S.D. Ga. | November 1, 2023 | May 18, 2030 | – | – | John Roberts | George W. Bush |
Former members
[edit]| Name | Court | Start | End | Presiding Start | Presiding End | FISCR Appointer (Chief Justice) |
Original Appointer (President) |
|---|---|---|---|---|---|---|---|
| Morris Arnold | 8th Cir. | May 19, 2008 | August 31, 2013 | September 10, 2012 | August 31, 2013 | John Roberts | George H. W. Bush |
| Bobby Baldock | 10th Cir. | June 17, 1992 | May 18, 1998 | – | – | William Rehnquist | Ronald Reagan |
| James Barrett | 10th Cir. | May 19, 1979 | May 18, 1984 | – | – | Warren Burger | Richard Nixon |
| William Bryson | Fed. Cir. | May 19, 2011 | May 18, 2018 | September 10, 2013 | May 18, 2018 | John Roberts | Bill Clinton |
| José Cabranes | 2nd Cir. | August 9, 2013 | May 18, 2020 | May 19, 2018 | May 18, 2020 | John Roberts | Bill Clinton |
| John Field | 4th Cir. | May 19, 1982 | May 18, 1989 | – | – | Warren Burger | Richard Nixon |
| Ralph Guy | 6th Cir. | October 8, 1998 | May 18, 2005 | May 19, 2001 | May 18, 2005 | William Rehnquist | Ronald Reagan |
| Leon Higginbotham | 3rd Cir. | May 19, 1979 | May 18, 1986 | May 19, 1979 | May 18, 1986 | Warren Burger | Jimmy Carter |
| Edward Leavy | 9th Cir. | September 25, 2001 | May 18, 2008 | May 19, 2005 | May 18, 2008 | William Rehnquist | Ronald Reagan |
| George MacKinnon | D.C. Cir. | May 19, 1979 | May 18, 1982 | – | – | Warren Burger | Richard Nixon |
| Robert Miller | N.D. Ind. | July 8, 2020 | September 15, 2023 | – | – | John Roberts | Ronald Reagan |
| Edward Northrop | D. Md. | January 11, 1985 | January 10, 1992 | – | – | Warren Burger | John F. Kennedy |
| Paul Roney | 11th Cir. | September 13, 1994 | May 18, 2001 | September 13, 1994 | May 18, 2001 | William Rehnquist | Richard Nixon |
| Collins Seitz | 3rd Cir. | March 19, 1987 | March 18, 1994 | March 19, 1987 | March 18, 1994 | William Rehnquist | Lyndon Johnson |
| Bruce Selya | 1st Cir. | October 8, 2005 | May 18, 2012 | May 19, 2008 | May 18, 2012 | John Roberts | Ronald Reagan |
| David Sentelle | D.C. Cir. | May 19, 2018 | September 15, 2023 | May 19, 2020 | September 15, 2023 | John Roberts | Ronald Reagan |
| Laurence Silberman | D.C. Cir. | June 18, 1996 | May 18, 2003 | – | – | William Rehnquist | Ronald Reagan |
| Richard Tallman | 9th Cir. | January 27, 2014 | January 26, 2021 | – | – | John Roberts | Bill Clinton |
| Robert Warren | E.D. Wis. | October 30, 1989 | May 18, 1996 | – | – | William Rehnquist | Richard Nixon |
| Ralph Winter | 2nd Cir. | November 14, 2003 | May 18, 2010 | – | – | John Roberts | Ronald Reagan |
Seat succession
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References
[edit]- ^ In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, no. 08-01 (Foreign Intelligence Surveillance Court of Review, Jan 15, 2009)
- ^ Risen, James; Lichtblau, Eric (January 16, 2009). "Court Affirms Wiretapping Without Warrants". New York Times, January 15, 2009. Retrieved January 16, 2009.
- ^ Perez, Evan (January 16, 2009). "Court Backs U.S. Wiretapping". Wall Street Journal, January 16, 2009. Retrieved January 16, 2009.
- ^ "Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping". Washington Post, January 15, 2009. January 16, 2009. Retrieved January 16, 2009.
- ^ In re Certification of Questions of Law, no. 18-01 (Foreign Intelligence Surveillance Court of Review, Mar 16, 2018)
- ^ "Current Membership - Foreign Intelligence Surveillance Court of Review".
- ^
- Savage, Charles (May 2013). "Foreign Intelligence Surveillance Court – Foreign Intelligence Surveillance Court of Review: Current and Past Members". The New York Times. Archived from the original on July 31, 2013. Retrieved July 26, 2013.
- Savage, Charlie (July 25, 2013). "Roberts's Picks Reshaping Secret Surveillance Court". The New York Times. Retrieved July 26, 2013.
- ^ "Foreign Intelligence Surveillance Court 2013 Membership". irp.fas.org. Retrieved 2024-02-23.
- ^ "Policy Response to Intelligence Revelations Lags".
- ^ "FISC FISCR Judges Revised May 29 2020 200608" (PDF). www.fisc.uscourts.govF. Retrieved February 23, 2024.
- ^ "Judge Paul H. Roney". Eleventh Circuit. n.d. Archived from the original on September 23, 2006. Retrieved June 14, 2013.
- ^ "FISC FISCR Judges August 2020 200824" (PDF). www.fisc.uscourts.gov. Retrieved February 23, 2024.
Further reading
[edit]- "Foreign Intelligence Surveillance Court and Court of Review 2014 Membership". from the Federation of American Scientists. Retrieved February 7, 2014.
- Risen, James; Lichtblau, Eric (January 16, 2009). "Court Affirms Wiretapping Without Warrants". New York Times, January 15, 2009. Retrieved January 16, 2009.
- Perez, Evan (January 16, 2009). "Court Backs U.S. Wiretapping". Wall Street Journal, January 16, 2009. Retrieved January 16, 2009.
- "Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping". Washington Post, January 15, 2009. January 16, 2009. Retrieved January 16, 2009.
- "Court ruling endorses Bush surveillance policy". Associated Press, January 15, 2009. Archived from the original on January 17, 2009. Retrieved January 16, 2009.
- Pudlow, Jan (September 1, 2000). "Nixon era judges celebrate 30 years on the bench". The Florida Bar News, September 1, 2000. Retrieved September 30, 2012.
External links
[edit]- Rules of the Foreign Intelligence Surveillance Court of Review, via Federation of American Scientists
- The Department of Justice brief on Case No. 02-001, redacted version, via Federation of American Scientists
- FISCOR Hearing transcript on 02-001, via Federation of American Scientists
- The Court of Review's Decision on "In re: Sealed Case No. 02-001", from Findlaw